Constitution of the People's Republic of China

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https://en.wikipedia.org/wiki/Constitution_of_the_People%27s_Republic_of_China

 

Constitution of the People's Republic of China
Cover of the current constitution
Overview
Original title	中华人民共和国宪法
Jurisdiction	People's Republic of China
Ratified	December 4, 1982
Date effective	December 4, 1982
System	Unitary Marxist-Leninist one-party socialist republic
Government structure
Branches	Six (Legislative, Executive, Military, Supervisory, Judicial, Procuratorial)
Head of state	President
Chambers	Unicameral (National People's Congress)
Executive	State Council headed by the Premier of the State Council
Judiciary	Supreme People's Court Supreme People's Procuratorate
Federalism	Decentralization within a Unitary State (special administrative regions)
Electoral college	Yes – the National People's Congress, which elects all other state authorities, is itself elected by two layers of Indirect election: County and Township People's Congresses elect the members of Provincial People's Congresses, who in turn elect the members of the National People's Congress.
History
First legislature	September 21, 1949 (Chinese People's Political Consultative Conference) September 27, 1954 (National People's Congress)
First executive	September 27, 1954 (Chairman) October 1, 1949 (Premier)
First court	October 22, 1949
Amendments	5
Last amended	11 March 2018
Location	Beijing
Commissioned by	11th Communist Party Central Committee
Supersedes	1978 Constitution of the People's Republic of China
Full text
Constitution of the People's Republic of China at Wikisource

Constitution of the People's Republic of China
Traditional Chinese	中華人民共和國憲法
Simplified Chinese	中华人民共和国宪法

The Constitution of the People's Republic of China is the supreme law of the People's Republic of China. It was adopted by the 5th National People's Congress on December 4, 1982, with further revisions about every five years. It is the fourth constitution in PRC history, superseding the 1954 constitution, the 1975 constitution, and the 1978 constitution.

History

Main article: Constitutional history of the People's Republic of China

The first Constitution of the People's Republic of China was declared in 1954. After two intervening versions enacted in 1975 and 1978, the current Constitution was declared in 1982. There were significant differences between each of these versions, and the 1982 Constitution has subsequently been amended five times. In addition, evolving constitutional conventions have led to significant changes in the structure of the Chinese government in the absence of changes in the text of the Constitution.

Structure

1. Preamble
2. General Principles (Chapter 1)
3. The Fundamental Rights and Duties of Citizens (Chapter 2)
4. The Structure of the State (Chapter 3) — which includes such state organs as the National People's Congress, the President of the People's Republic of China, the State Council, the Central Military Commission, the Local People's Congresses at All Levels and Local People's Governments at All Levels, the Autonomous Organs of Ethnic Autonomous Areas, the Commissions of Supervision, and the People's Courts and People's Procuratorates.
5. The National Flag, the National Anthem, the National Emblem and the Capital (Chapter 4).

1982 Constitution

There had been five major revisions by the National People's Congress (NPC) to the 1982 Constitution. The 1982 State Constitution provided a legal basis for the broad changes in China's social and economic institutions and significantly revised government structure. The posts of President and Vice President (which were abolished in the 1975 and 1978 constitutions) are re-established in the 1982 Constitution.

Prior to 1982 there were no term limits on key leadership posts. Deng imposed a two-term limit (10 years total) on all but the chair of the Central Military Commission.

Much of the PRC Constitution is modeled after the 1936 Constitution of the Soviet Union, but there are some significant differences. For example, while the Soviet constitution contains an explicit right of secession, the Chinese constitution explicitly forbids secession. While the Soviet constitution formally creates a federal system, the Chinese constitution formally creates a unitary multi-national state.

The 1982 Constitution is a lengthy, hybrid document with 138 articles. Large sections were adapted directly from the 1978 constitution, but many of its changes derive from the 1954 constitution. Specifically, the new Constitution de-emphasizes class struggle and places top priority on development and on incorporating the contributions and interests of non-party groups that can play a central role in modernization.

Article 1 of the Constitution describes China as "a socialist state under the people's democratic dictatorship" meaning that the system is based on an alliance of the working classes—in communist terminology, the workers and peasants—and is led by the Chinese Communist Party (CCP), the vanguard of the working class. Elsewhere, the Constitution provides for a renewed and vital role for the groups that make up that basic alliance—the Chinese People's Political Consultative Conference, minor political parties, and people's organizations.

The 1982 Constitution expunges almost all of the rhetoric associated with the Cultural Revolution incorporated in the 1978 version. In fact, the Constitution omits all references to the Cultural Revolution and restates Chairman Mao Zedong's contributions in accordance with a major historical reassessment produced in June 1981 at the Sixth Plenum of the Eleventh Central Committee, the "Resolution on Some Historical Issues of the Party since the Founding of the People's Republic."

Emphasis is also placed throughout the 1982 State Constitution on socialist law as a regulator of political behavior. Unlike the 1977 Soviet Constitution, the text of the Constitution itself originally did not explicitly mention the CCP outside the preamble.

Thus, the rights and obligations of citizens are set out in detail far exceeding that provided in the 1978 constitution. Probably because the Cultural Revolution was "characterized by violence and chaos," the 1982 Constitution gives even greater attention to clarifying citizens' "fundamental rights and duties" than the 1954 constitution did, like the right to vote and to run for election begins at the age of eighteen except for those disenfranchised by law. The Constitution also guarantees the freedom of religious worship as well as the "freedom not to believe in any religion" and affirms that "religious bodies and religious affairs are not subject to any foreign domination."

Article 35 of the 1982 Constitution proclaims that "citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration." In the 1978 constitution, these rights were guaranteed, but so were the right to strike and the "four big rights", often called the "four bigs": to speak out freely, air views fully, hold great debates, and write big-character posters. In February 1980, following the Democracy Wall period, the four bigs were abolished in response to a party decision ratified by the National People's Congress. The right to strike was also dropped from the 1982 Constitution. The widespread expression of the four big rights during the student protests of late 1986 elicited the regime's strong censure because of their illegality. The official response cited Article 53 of the 1982 Constitution, which states that citizens must abide by the law and observe labor discipline and public order. Besides being illegal, practising the four big rights offered the possibility of straying into criticism of the CCP, which was in fact what appeared in student wall posters. In a new era that strove for political stability and economic development, party leaders considered the four big rights politically destabilizing. Chinese citizens are prohibited from forming new political parties.

Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected. According to the later promulgated election law, rural residents had only 1/4 vote power of townsmen (formerly 1/8). As Chinese citizens are categorized into rural resident and town resident, and the constitution has no stipulation of freedom of transference, those rural residents are restricted by the Hukou (registered permanent residence) and have fewer political, economic, and educational rights. This problem has largely been addressed with various and ongoing reforms of Hukou in 2007. The fore-said ratio of vote power has been readjusted to 1:1 by an amendment to the election law passed in March 2010.

The 1982 State Constitution is also more specific about the responsibilities and functions of offices and organs in the state structure. There are clear admonitions against familiar Chinese practices that the reformers have labelled abuses, such as concentrating power in the hands of a few leaders and permitting lifelong tenure in leadership positions. On the other hand, the constitution strongly oppose the western system of separation of powers by executive, legislature and judicial. It stipulates the NPC as the highest organ of state authority power, under which the State Council, the Supreme People's Court, and the Supreme People's Procuratorate are responsible to.

In addition, the 1982 Constitution provides an extensive legal framework for the liberalizing economic policies of the 1980s. It allows the collective economic sector not owned by the state a broader role and provides for limited private economic activity. Members of the expanded rural collectives have the right "to farm private plots, engage in household sideline production, and raise privately owned livestock." The primary emphasis is given to expanding the national economy, which is to be accomplished by balancing centralized economic planning with supplementary regulation by the market.

Another key difference between the 1978 and 1982 state constitutions is the latter's approach to outside help for the modernization program. Whereas the 1978 constitution stressed "self-reliance" in modernization efforts, the 1982 document provides the constitutional basis for the considerable body of laws passed by the NPC in subsequent years permitting and encouraging extensive foreign participation in all aspects of the economy. In addition, the 1982 document reflects the more flexible and less ideological orientation of foreign policy since 1978. Such phrases as "proletarian internationalism" and "social imperialism" have been dropped.

The 1982 constitution included the birth planning policy known as the one-child policy.

Revisions and amendments

7th National People's Congress (1988)

See also: 7th National People's Congress

The National People's Congress amended Articles 10 and 11 of the Constitution. Allow the emergence of the private sector and allow the transfer of the Land tenure.

8th National People's Congress (1993)

See also: 8th National People's Congress

9th National People's Congress (1999)

See also: 9th National People's Congress

10th National People's Congress (2004)

See also: 10th National People's Congress

The Constitution was amended on 14 March 2004 to include guarantees regarding private property ("legally obtained private property of the citizens shall not be violated") and human rights ("the State respects and protects human rights"). The government argued that this represented progress for Chinese democracy and was a sign from the CCP that they recognized the need to adapt to the booming Chinese economy, which had created a growing middle class who wanted private property protections.

Chinese leader Hu Jintao said that "These amendments of the Chinese constitution are of great importance to the development of China [...] We will make serious efforts to carry them out in practice."

13th National People's Congress (2018)

See also: 13th National People's Congress

The Constitution was amended on 11 March 2018, with 2,958 votes in favour, two against, and three abstentions. It includes an assortment of revisions that further cement the CCP's control and supremacy, including setting up the National Supervisory Commission, establishing a new anti-graft agency, extending the powers of the CCP's graft watchdog, adding Hu Jintao's Scientific Outlook on Development and Xi Jinping Thought to the Preamble of the Constitution, and removing term limits for both the President and Vice President, enabling Xi Jinping to remain president indefinitely. Xi is also the General Secretary of the Chinese Communist Party, the de facto top position in CCP ruling China without term limit.

The concept of ecological civilization building was also added to the Constitution.

The amendments also add the phrases "Communist Party of China" and its "leadership" into the main body of the Constitution. Prior to the amendment, the CCP and its leadership were only mentioned in the preamble. Constitutional preambles are often not legally binding (as with the United States constitution), and as the legal applicability of the Chinese constitution is debated the amendment may be seen as providing a constitutional basis for China's status as a one-party state and formally rendering any competitive multi-party system unconstitutional. Xi "now has the distinction of being the first Chinese leader ever to have his theories enshrined in the constitution during his own lifetime." The leadership of the CPC is now constitutionally enshrined as the "defining feature of socialism with Chinese characteristics", and therefore it establishes one-party rule as an end-in-itself. Xi says:

Party, government, military, civilian, and academic, north, south, east, west, and center, the Party leads everything.

Constitutional enforcement

The constitution stipulates that the National People's Congress (NPC) and its Standing Committee have the power to review whether laws or activities violate the constitution. Unlike many Western legal systems, courts do not have the power of judicial review and cannot invalidate a statute on the grounds that it violates the constitution.

Since 2002, a special committee within the NPC called the National People's Congress Constitution and Law Committee has been responsible for constitutional review and enforcement. The committee has never explicitly ruled that a law or regulation is unconstitutional. However, in one case, after media outcry over the death of Sun Zhigang the State Council was forced to rescind regulations allowing police to detain persons without residency permits after the Standing Committee of the National People's Congress (NPCSC) made it clear that it would rule such regulations unconstitutional.

In January 2020, the NPC Legislative Affairs Committee [zh] conducted a constitutional review, targeting the relevant provisions in local regulations concerning that "schools of all levels and types of ethnic minorities should use the language of the ethnic group or the language commonly used by the ethnic group for teaching" and that "some courses in minority schools with conditions can be taught in Chinese with the approval of the local education administration department". The Legislative Affairs Committee found that the above-mentioned provisions are inconsistent with the provisions of Article 19, paragraph 5 of the Constitution on promotion of Putonghua and the provisions in National Common Language Law, Education Law and other relevant laws. Local authorities have been ordered to make changes.

In November 2020, the 13th NPC Standing Committee adopted a decision on the qualification of members of the Legislative Council of the Hong Kong Special Administrative Region [zh], which referred to Article 64, item 1 of the Constitution on interpreting the Constitution.

Criticisms

The Open Constitution Initiative was an organization consisting of lawyers and academics in the People's Republic of China that advocated the rule of law and greater constitutional protections. It was shut down by the government on July 14, 2009.

In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution.

In 2019, Ling Li of the University of Vienna and Wenzhang Zhou of Zhejiang University wrote that "the constitution appeals to [the CCP] because it does not provide solutions to fundamental issues of governance. Instead, such issues are kept out of the constitution so that they can be addressed by the Party through other regulatory mechanisms outside of the constitutional realm."

Criminal law

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Criminal_law

 

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws.

Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation, rather than on punishment or rehabilitation.

Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender.

History

The first civilizations generally did not distinguish between civil law and criminal law. The first written codes of law were designed by the Sumerians. Around 2100–2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted written legal code whose text has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of Lagash ( 2380–2360 BC ) is also known to have existed. Another important early code was the Code of Hammurabi, which formed the core of Babylonian law. Only fragments of the early criminal laws of Ancient Greece have survived, e.g. those of Solon and Draco.

The Old Bailey in London (in 1808) was the venue for more than 100,000 criminal trials between 1674 and 1834, including all death penalty cases.

In Roman law, Gaius's Commentaries on the Twelve Tables also conflated the civil and criminal aspects, treating theft (furtum) as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages. The criminal law of imperial Rome is collected in Books 47–48 of the Digest. After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from then until the present time.

The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scholasticism (see Alfonso de Castro), when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law. Codifiers and architects of Early Modern criminal law were the German jurist Benedikt Carpzov (1595–1666), professor of law in Leipzig, and two Italians, the Roman judge and lawyer Prospero Farinacci (1544–1618) and the Piedmontese lawyer and statesman Giulio Claro (1525–1575).

The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.

Objectives of criminal law

Criminal law is distinctive for the uniquely serious, potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. Jurisdictions differ on the value to be placed on each.

• Retribution – Criminals ought to Be Punished in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance."
• Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.
• Incapacitation – Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.
• Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.
• Restoration – This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restoration is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, i.e., returning the victim to his or her original position before the injury.

Selected criminal laws

Many laws are enforced by threat of criminal punishment, and the range of the punishment varies with the jurisdiction. The scope of criminal law is too vast to catalog intelligently. Nevertheless, the following are some of the more typical aspects of criminal law.

Elements

Main article: Element (criminal law)

The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes – particularly modern regulatory offenses – require no more, and they are known as strict liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.

Actus reus

Main article: Actus reus

An English court room in 1886, with Lord Chief Justice Coleridge presiding

Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime.

Where the actus reus is a failure to act, there must be a duty of care. A duty can arise through contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one's official position. Duty also can arise from one's own creation of a dangerous situation. On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place. In this case it was held that since a PVS patient could not give or withhold consent to medical treatment, it was for the doctors to decide whether treatment was in the patient's best interest. It was reasonable for them to conclude that treatment was not in the patient's best interest, and should therefore be stopped, when there was no prospect of improvement. It was never lawful to take active steps to cause or accelerate death, although in certain circumstances it was lawful to withhold life sustaining treatment, including feeding, without which the patient would die.

An actus reus may be nullified by an absence of causation. For example, a crime involves harm to a person, the person's action must be the but for cause and proximate cause of the harm. If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the act must have "more than a slight or trifling link" to the harm.

Causation is not broken simply because a victim is particularly vulnerable. This is known as the thin skull rule. However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim's own conduct, or another unpredictable event. A mistake in medical treatment typically will not sever the chain, unless the mistakes are in themselves "so potent in causing death."

Mens rea

Main article: Mens rea

Mens rea is another Latin phrase, meaning "guilty mind". This is the mental element of the crime. A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person's motive (although motive does not exist in Scots law).

A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recklessness. It is the mental state of mind of the person at the time the actus reus was committed. For instance, if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning. Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognized a risk. Of course, a requirement only that one ought to have recognized a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law but is obviously still an important part in the criminal system.

Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the punishment but this is not always the case. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.[Note: The notion of transferred intent does not exist within Scots' Law. In Scotland, one would not be charged with assault due to transferred intent, but instead assault due to recklessness.

Strict liability

Main article: Strict liability (criminal)

Strict liability can be described as criminal or civil liability notwithstanding the lack of mens rea or intent by the defendant. Not all crimes require specific intent, and the threshold of culpability required may be reduced or demoted. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offenses of absolute liability, other than the prohibited act, it may not be necessary to show the act was intentional. Generally, crimes must include an intentional act, and "intent" is an element that must be proved in order to find a crime occurred. The idea of a "strict liability crime" is an oxymoron. The few exceptions are not truly crimes at all – but are administrative regulations and civil penalties created by statute, such as crimes against the traffic or highway code.

Fatal offenses

Main articles: Murder and Culpable homicide

A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a required element of murder. Manslaughter (Culpable Homicide in Scotland) is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.

Settled insanity is a possible defense.

Personal offenses

Main articles: Assault, Battery (crime), Rape, and Sexual abuse

Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a fear of imminent battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly egregious form of battery.

Property offenses

Main articles: Criminal damage, Criminal trespass, Theft, Robbery, Extortion, Dacoity, Burglary, and Fraud

Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for conversion, embezzlement, and theft, all of which involve deprivations of the value of the property. Robbery is a theft by force. Fraud in the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position.

Participatory offenses

Main articles: Accomplice, Aid and abet, and Inchoate offenses

Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt. However, in Scotland, the English concept of Aiding and Abetting is known as Art and Part Liability. See Glanville Williams, Textbook of Criminal Law, (London: Stevens & Sons, 1983); Glanville Williams, Criminal Law the General Part (London: Stevens & Sons, 1961).

Mala in se v. mala prohibita

While crimes are typically broken into degrees or classes to punish appropriately, all offenses can be divided into 'mala in se' and 'mala prohibita' laws. Both are Latin legal terms, mala in se meaning crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. Mala in se offenses are felonies, property crimes, immoral acts and corrupt acts by public officials. Mala prohibita, on the other hand, refers to offenses that do not have wrongfulness associated with them. Parking in a restricted area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are examples of acts that are prohibited by statute, but without which are not considered wrong. Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea component for punishment under those offenses, just the act itself. For this reason, it can be argued that offenses that are mala prohibita are not really crimes at all.

Defenses

Main article: Criminal defenses

Criminal law jurisdictions

Main articles: Crimes against humanity and United States and the International Criminal Court

The exterior of the International Criminal Court's headquarters building in the Hague

Public international law deals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. The Nuremberg trials marked the beginning of criminal fault for individuals, where individuals acting on behalf of a government can be tried for violations of international law without the benefit of sovereign immunity. In 1998 an International criminal court was established in the Rome Statute.

Crime against nature

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Crime_against_nature

The crime against nature or unnatural act has historically been a legal term in English-speaking states identifying forms of sexual behavior not considered natural or decent and are legally punishable offenses. Sexual practices that have historically been considered to be "crimes against nature" include masturbation, sodomy and bestiality.

History and terminology

For much of modern history, a "crime against nature" was understood by courts to be synonymous to "buggery", and to include anal sex (copulation per anum) and bestiality. Early court decisions agreed that fellatio (copulation per os) was not included, though mainly because that practice was virtually unknown when the common-law definition was established (it remained so rare that first attempted fellatio prosecutions under the "crime against nature" statute date to 1817 in England and 1893 in the United States.) Likewise, sexual activities between two women were not covered. Over time, particularly starting in the early 20th century, some jurisdictions started enacting statutes or developing precedents the extended the scope of the crime to include fellatio and, sometimes, other sexual activities.

The term crime against nature is closely related to, and was often used interchangeably with, the term sodomy. (This varied from jurisdiction to jurisdiction. Sometimes the two terms were understood to be synonymous; sometimes sodomy was limited to sexual activities between two humans; and sometimes sodomy was taken to include anal sex or bestiality, whereas crime against nature also included fellatio.)

Until the early 19th century, courts were divided on whether the act needed to be completed (to result in ejaculation) in order to be a punishable offense. This question was deemed sufficiently important that, in 1828, English law was explicitly amended to specify that proof of ejaculation was not necessary for convictions for buggery and rape. The crime was not limited to same-sex activities, and, in case of an act between two adults, both participants were guilty, regardless of consent. Attempted or completed act of sodomy, committed by a husband against his wife, was grounds for divorce in common law.

Historically, the offense was usually referred to by its longer name, the detestable and abominable (or abominable and detestable, or, sometimes, infamous) crime against nature, committed with mankind or beast. This phrase originates in Buggery Act 1533, with words "crime against nature" substituted for "vice of buggery" in the original, and it was present in one of these forms in criminal codes of most U.S. states. Specific acts included under this heading were typically deemed too detestable to list them explicitly, resulting in a number of vagueness-based legal challenges to corresponding statutes. One of the most recent, and one of the rare successful challenges, is the 1971 Florida case of Franklin v. State. On the other hand, just 7 years prior, a similar challenge (Perkins v. State) failed in North Carolina. (In Perkins, the Court wrote that, if this were a new statute, it would have been "obviously unconstitutional for vagueness", but, since this was a statute whose history was traceable back to the reign of Henry VIII, it accumulated a number of judicial interpretations, and, backed with these interpretations, it was not unconstitutionally vague.)

Penalties for this offense varied greatly over time and between jurisdictions. Crime against nature remained punishable by death or life imprisonment both in the UK and in many U.S. states well into the 19th century. Liberalization of sexual morals led to reduction of penalties or decriminalization of the offense during the second half of the 20th century, so that, by 2003, it was no longer a punishable offense in 36 out of 50 U.S. states, and was only punishable by a fine in some of the remaining 14. (See Sodomy laws in the United States for details.)

Current use

Currently, the term crime against nature is still used in the statutes of the following American states. However, these laws are unconstitutional to enforce for sexual conduct between consenting adults in light of Lawrence v. Texas (2003). The crime against nature statutes are however still used to criminalize sexual conduct involving minors, incest, public sex, prostitution and bestiality.

• Louisiana (R.S. 14:89) (Struck down the part of the statute that criminalized adult consensual anal and oral sex by the United States Court of Appeals for the Fifth Circuit in 2005)
• Massachusetts (MGL Ch. 272, § 34) (Struck down the part of the statute that criminalized adult consensual anal and oral sex by the Massachusetts Supreme Judicial Court in 1974)
• Michigan (MCL § 750.158)
• Mississippi (Miss. Code § 97-29-59)
• North Carolina (G.S. § 14-177) (The North Carolina Court of Appeals ruled that the crime against nature statute, N.C. G.S. § 14-177, is not unconstitutional on its face because it may properly be used to criminalize sexual conduct involving minors, non-consensual or coercive conduct, public conduct, and prostitution)
• Oklahoma (Okla. Stat. § 21-886 (2019)) (Struck down the part of the statute that criminalized heterosexual adult consensual anal and oral sex by the Oklahoma Court of Criminal Appeals in 1988) (note that the statute does not specifically outlaw offenses related to minors, which are treated elsewhere in law.)
• Rhode Island (§ 11-10-1.)
• Virginia (Va. Code § 18.2-361) (Struck down by United States Court of Appeals for the Fourth Circuit on March 12, 2013)

Repeal and unconstitutionality

Except for the above eight states, all other states in the United States have repealed their "crimes against nature" laws. Furthermore, in 2003, in Lawrence v. Texas, the US Supreme Court held that nonremunerative sex between consenting adults in private was protected by the Constitution and could not be criminalized under "crimes against nature" laws. Thus, fellatio, cunnilingus and anal sex can no longer fall within the scope of such laws.

Similar laws

See also Sodomy laws.

• Article 377 of the Indian Penal Code (since 1860) prohibits all sexual acts against human nature. The portion criminalising consensual sex in private between adults was struck down by the Supreme Court of India in 2018 - but however still officially on the statute books.
• Paragraph 175 in the imperial penal code of the German Empire - repealed in 1994 officially.

Polypharmacy

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Polypharmacy

Polypharmacy is often defined as taking 5 or more medicines.

Polypharmacy (polypragmasia) is an umbrella term to describe the simultaneous use of multiple medicines by a patient for their conditions. The term polypharmacy is often defined as regularly taking five or more medicines but there is no standard definition and the term has also been used in the context of when a person is prescribed 2 or more medications at the same time. Polypharmacy may be the consequence of having multiple long-term conditions, also known as multimorbidity and is more common in people who are older. In some cases, an excessive number of medications at the same time is worrisome, especially for people who are older with many chronic health conditions, because this increases the risk of an adverse event in that population. In many cases, polypharmacy cannot be avoided, but 'appropriate polypharmacy' practices are encouraged to decrease the risk of adverse effects. Appropriate polypharmacy is defined as the practice of prescribing for a person who has multiple conditions or complex health needs by ensuring that medications prescribed are optimized and follow 'best evidence' practices.

The prevalence of polypharmacy is estimated to be between 10% and 90% depending on the definition used, the age group studied, and the geographic location. Polypharmacy continues to grow in importance because of aging populations. Many countries are experiencing a fast growth of the older population, 65 years and older. This growth is a result of the baby-boomer generation getting older and an increased life expectancy as a result of ongoing improvement in health care services worldwide. About 21% of adults with intellectual disability are also exposed to polypharmacy. The level of polypharmacy has been increasing in the past decades. Research in the USA shows that the percentage of patients greater than 65 years-old using more than 5 medications increased from 24% to 39% between 1999 and 2012. Similarly, research in the UK found that the number of older people taking 5 plus medication had quadrupled from 12% to nearly 50% between 1994 and 2011.

Polypharmacy is not necessarily ill-advised, but in many instances can lead to negative outcomes or poor treatment effectiveness, often being more harmful than helpful or presenting too much risk for too little benefit. Therefore, health professionals consider it a situation that requires monitoring and review to validate whether all of the medications are still necessary. Concerns about polypharmacy include increased adverse drug reactions, drug interactions, prescribing cascade, and higher costs. A prescribing cascade occurs when a person is prescribed a drug and experiences an adverse drug effect that is misinterpreted as a new medical condition, so the patient is prescribed another drug. Polypharmacy also increases the burden of medication taking particularly in older people and is associated with medication non-adherence.

Polypharmacy is often associated with a decreased quality of life, including decreased mobility and cognition. Patient factors that influence the number of medications a patient is prescribed include a high number of chronic conditions requiring a complex drug regimen. Other systemic factors that impact the number of medications a patient is prescribed include a patient having multiple prescribers and multiple pharmacies that may not communicate.

Whether or not the advantages of polypharmacy (over taking single medications or monotherapy) outweigh the disadvantages or risks depends upon the particular combination and diagnosis involved in any given case. The use of multiple drugs, even in fairly straightforward illnesses, is not an indicator of poor treatment and is not necessarily overmedication. Moreover, it is well accepted in pharmacology that it is impossible to accurately predict the side effects or clinical effects of a combination of drugs without studying that particular combination of drugs in test subjects. Knowledge of the pharmacologic profiles of the individual drugs in question does not assure accurate prediction of the side effects of combinations of those drugs; and effects also vary among individuals because of genome-specific pharmacokinetics. Therefore, deciding whether and how to reduce a list of medications (deprescribe) is often not simple and requires the experience and judgment of a practicing clinician, as the clinician must weigh the pros and cons of keeping the patient on the medication. However, such thoughtful and wise review is an ideal that too often does not happen, owing to problems such as poorly handled care transitions (poor continuity of care, usually because of siloed information), overworked physicians and other clinical staff, and interventionism.

Appropriate medical uses

While polypharmacy is typically regarded as undesirable, prescription of multiple medications can be appropriate and therapeutically beneficial in some circumstances. “Appropriate polypharmacy” is described as prescribing for complex or multiple conditions in such a way that necessary medicines are used based on the best available evidence at the time to preserve safety and well-being. Polypharmacy is clinically indicated in some chronic conditions, for example in diabetes mellitus, but should be discontinued when evidence of benefit from the prescribed drugs no longer outweighs potential for harm (described below in Contraindications).

Often certain medications can interact with others in a positive way specifically intended when prescribed together, to achieve a greater effect than any of the single agents alone. This is particularly prominent in the field of anesthesia and pain management – where atypical agents such as antiepileptics, antidepressants, muscle relaxants, NMDA antagonists, and other medications are combined with more typical analgesics such as opioids, prostaglandin inhibitors, NSAIDS and others. This practice of pain management drug synergy is known as an analgesia sparing effect.

Examples

• A legitimate treatment regimen in the first year after a myocardial infarction may include: a statin, an ACE inhibitor, a beta-blocker, aspirin, paracetamol and an antidepressant.
• In anesthesia (particularly IV anesthesia and general anesthesia) multiple agents are almost always required – including hypnotics or analgesic inducing/maintenance agents such as midazolam or propofol, usually an opioid analgesic such as morphine or fentanyl, a paralytic such as vecuronium, and in inhaled general anesthesia generally a halogenated ether anesthetic such as sevoflurane or desflurane.

Special populations

People who are at greatest risk for negative polypharmacy consequences include elderly people, people with psychiatric conditions, patients with intellectual or developmental disabilities, people taking five or more drugs at the same time, those with multiple physicians and pharmacies, people who have been recently hospitalized, people who have concurrent comorbidities, people who live in rural communities, people with inadequate access to education, and those with impaired vision or dexterity. Marginalized populations may have a greater degrees of polypharmacy, which can occur more frequently in younger age groups.

It is not uncommon for people who are dependent or addicted to substances to enter or remain in a state of polypharmacy misuse. About 84% of prescription drug misusers reported using multiple drugs. Note, however, that the term polypharmacy and its variants generally refer to legal drug use as-prescribed, even when used in a negative or critical context.

Measures can be taken to limit polypharmacy to its truly legitimate and appropriate needs. This is an emerging area of research, frequently called deprescribing. Reducing the number of medications, as part of a clinical review, can be an effective healthcare intervention. Clinical pharmacists can perform drug therapy reviews and teach physicians and their patients about drug safety and polypharmacy, as well as collaborating with physicians and patients to correct polypharmacy problems. Similar programs are likely to reduce the potentially deleterious consequences of polypharmacy such as adverse drug events, non-adherence, hospital admissions, drug-drug interactions, geriatric syndromes, and mortality. Such programs hinge upon patients and doctors informing pharmacists of other medications being prescribed, as well as herbal, over-the-counter substances and supplements that occasionally interfere with prescription-only medication. Staff at residential aged care facilities have a range of views and attitudes towards polypharmacy that, in some cases, may contribute to an increase in medication use.

Risks of polypharmacy

The risk of polypharmacy increases with age, although there is some evidence that it may decrease slightly after age 90 years. Poorer health is a strong predictor of polypharmacy at any age, although it is unclear whether the polypharmacy causes the poorer health or if polypharmacy is used because of the poorer health. It appears possible that the risk factors for polypharmacy may be different for younger and middle-aged people compared to older people.

The use of polypharmacy is correlated to the use of potentially inappropriate medications. Potentially inappropriate medications are generally taken to mean those that have been agreed upon by expert consensus, such as by the Beers Criteria. These medications are generally inappropriate for older adults because the risks outweigh the benefits. Examples of these include urinary anticholinergics used to treat incontinence; the associated risks, with anticholinergics, include constipation, blurred vision, dry mouth, impaired cognition, and falls. Many older people living in long term care facilities experience polypharmacy, and under-prescribing of potentially indicated medicines and use of high risk medicines can also occur.

Polypharmacy is associated with an increased risk of falls in elderly people. Certain medications are well known to be associated with the risk of falls, including cardiovascular and psychoactive medications. There is some evidence that the risk of falls increases cumulatively with the number of medications. Although often not practical to achieve, withdrawing all medicines associated with falls risk can halve an individual's risk of future falls.

Every medication has potential adverse side-effects. With every drug added, there is an additive risk of side-effects. Also, some medications have interactions with other substances, including foods, other medications, and herbal supplements. 15% of older adults are potentially at risk for a major drug-drug interaction. Older adults are at a higher risk for a drug-drug interaction due to the increased number of medications prescribed and metabolic changes that occur with aging. When a new drug is prescribed, the risk of interactions increases exponentially. Doctors and pharmacists aim to avoid prescribing medications that interact; often, adjustments in the dose of medications need to be made to avoid interactions. For example, warfarin interacts with many medications and supplements that can cause it to lose its effect.

Pill burden

Pill burden is the number of pills (tablets or capsules, the most common dosage forms) that a person takes on a regular basis, along with all associated efforts that increase with that number - like storing, organizing, consuming, and understanding the various medications in one's regimen. The use of individual medications is growing faster than pill burden. A recent study found that older adults in long term care are taking an average of 14 to 15 tablets every day.

Poor medical adherence is a common challenge among individuals who have increased pill burden and are subject to polypharmacy. It also increases the possibility of adverse medication reactions (side effects) and drug-drug interactions. High pill burden has also been associated with an increased risk of hospitalization, medication errors, and increased costs for both the pharmaceuticals themselves and for the treatment of adverse events. Finally, pill burden is a source of dissatisfaction for many patients and family carers.

High pill burden was commonly associated with antiretroviral drug regimens to control HIV, and is also seen in other patient populations. For instance, adults with multiple common chronic conditions such as diabetes, hypertension, lymphedema, hypercholesterolemia, osteoporosis, constipation, inflammatory bowel disease, and clinical depression may be prescribed more than a dozen different medications daily. The combination of multiple drugs has been associated with an increased risk of adverse drug events.

Reducing pill burden is recognized as a way to improve medication compliance, also referred to as adherence. This is done through "deprescribing", where the risks and benefits are weighed when considering whether to continue a medication. This includes drugs such as bisphosphonates (for osteoporosis), which are often taken indefinitely although there is only evidence to use it for five to ten years. Patient educational programs, reminder messages, medication packaging, and the use of memory tricks has also been seen to improve adherence and reduce pill burden in several countries. These include associating medications with mealtimes, recording the dosage on the box, storing the medication in a special place, leaving it in plain sight in the living room, or putting the prescription sheet on the refrigerator. The development of applications has also shown some benefit in this regard. The use of a polypill regimen, such as combination pill for HIV treatment, as opposed to a multi-pill regimen, also alleviates pill burden and increases adherence.

The selection of long-acting active ingredients over short-acting ones may also reduce pill burden. For instance, ACE inhibitors are used in the management of hypertension. Both captopril and lisinopril are examples of ACE inhibitors. However, lisinopril is dosed once a day, whereas captopril may be dosed 2-3 times a day. Assuming that there are no contraindications or potential for drug interactions, using lisinopril instead of captopril may be an appropriate way to limit pill burden.

Interventions

The most common intervention to help people who are struggling with polypharmacy is deprescribing. Deprescribing can be confused with medication simplification, which does not attempt to reduce the number of medicines but rather reduce the number of dose forms and administration times. Deprescribing refers to reducing the number of medications that a person is prescribed and includes the identification and discontinuance of medications when the benefit no longer outweighs the harm. In elderly patients, this can commonly be done as a patient becomes more frail and treatment focus needs to shift from preventative to palliative. Deprescribing is feasible and effective in many settings including residential care, communities and hospitals. This preventative measure should be considered for anyone who exhibits one of the following: (1) a new symptom or adverse event arises, (2) when the person develops an end-stage disease, (3) if the combination of drugs is risky, or (4) if stopping the drug does not alter the disease trajectory.

Several tools exist to help physicians decide when to deprescribe and what medications can be added to a pharmaceutical regimen. The Beers Criteria and the STOPP/START criteria help identify medications that have the highest risk of adverse drug events (ADE) and drug-drug interactions. The Medication appropriateness tool for comorbid health conditions during dementia (MATCH-D) is the only tool available specifically for people with dementia, and also cautions against polypharmacy and complex medication regimens.

Barriers faced by both physicians and people taking the medications have made it challenging to apply deprescribing strategies in practice. For physicians, these include fear of consequences of deprescribing, the prescriber's own confidence in their skills and knowledge to deprescribe, reluctance to alter medications that are prescribed by specialists, the feasibility of deprescribing, lack of access to all of patients' clinical notes, and the complexity of having multiple providers. For patients who are prescribed or require the medication, barriers include attitudes or beliefs about the medications, inability to communicate with physicians, fears and uncertainties surrounding deprescribing, and influence of physicians, family, and the media. Barriers can include other health professionals or carers, such as in residential care, believing that the medicines are required.

In people with multiple long-term conditions (multimorbidity) and polypharmacy deprescribing represents a complex challenge as clinical guidelines are usually developed for single conditions. In these cases tools and guidelines like the Beers Criteria and STOPP/START could be used safely by clinicians but not all patients might benefit from stopping their medication. There is a need for clarity about how much clinicians can do beyond the guidelines and the responsibility they need to take could help them prescribing and deprescribing for complex cases. Further factors that can help clinicians tailor their decisions to the individual are: access to detailed data on the people in their care (including their backgrounds and personal medical goals), discussing plans to stop a medicine already when it is first prescribed, and a good relationship that involves mutual trust and regular discussions on progress. Furthermore, longer appointments for prescribing and deprescribing would allow time explain the process of deprescribing, explore related concerns, and support making the right decisions.

The effectiveness of specific interventions to improve the appropriate use of polypharmacy such as pharmaceutical care and computerised decision support is unclear. This is due to low quality of current evidence surrounding these interventions. High quality evidence is needed to make any conclusions about the effects of such interventions in any environment, including in care homes. Deprescribing is not influenced by whether medicines are prescribed through a paper-based or an electronic system. Deprescribing rounds has been proposed as a potentially successful methodology in reducing polypharmacy. Sharing of positive outcomes from physicians who have implemented deprescribing, increased communication between all practitioners involved in patient care, higher compensation for time spent deprescribing, and clear deprescribing guidelines can help enable the practice of deprescribing. Despite the difficulties, a recent blinded study of deprescribing reported that participants used an average of two fewer medicines each after 12 months showing again that deprescribing is feasible.